Consent Law in Queensland: Public Advocacy Campaign

Our belief is that the ‘mistake of fact’ excuse should be rendered inapplicable to the issue of consent in rape and sexual assault cases. This change would avoid serious injustices occasioned by the current law, without compromising the defendant’s right to a presumption of innocence or a fair trial. What we are fighting for at this stage is for the Attorney-General to refer this issue to the Law Reform Commission. It is then their job to determine the best possible way forward. They would take submissions from the public, the profession, and any interested parties.

- Remove "Mistake of Fact" altogether
- Move towards a positive definition of consent
- Remove the current allowances for intoxication

Consent law in Queensland can be complicated. We actually have quite a comprehensive, progressive definition of consent, but the ‘mistake of fact’ defence undermines and contradicts that definition. It allows defendants to benefit from old attitudes and rape myths, undoing the practical effects that society’s changing attitudes toward consent have had on the definition itself.
A recent empirical study into Australian stakeholder perceptions of the ‘mistake of fact’ defence in rape law—including lawyers, sexual assault professionals and members of the broader community—found that many participants viewed the notion of mistaken belief in consent as vague, overly broad and “biased in favour of the defendant”.

WHAT IS THE CURRENT DEFINITION OF CONSENT?
The crime of rape is defined in Queensland (as it is throughout Australia) as sexual intercourse without “free and voluntary consent”. There is a list of factors that will render consent not freely and voluntarily given, such as threats, intimidation, and fraud. Passive non-resistance (like ‘the freeze’) does not equate to consent, particularly in situations where the complainant feels intimidated. A complainant’s consent also cannot be inferred from unrelated social behaviour such as: her clothes, level of intoxication, or her willingness to accompany the defendant to a private location.

AND WHAT IS ‘MISTAKE OF FACT’?
Section 24(1) of the Criminal Code says that “[a] person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.” The relevance of this in rape and sexual assault trials typically arises when the defendant suggests they had a mistaken belief that the complainant consented.
If the facts of a case make it potentially relevant, the prosecution must prove that the defendant did not have an honest and reasonable belief that the complainant was consenting. The jury may believe that a complainant didn’t want the sex and didn’t consent, but they will acquit the defendant if they believe he had an honest and reasonable belief that the complainant was consenting. (It’s a two-part defence. The ‘honest’ part is a subjective question: What did the defendant have in his mind? The ‘reasonable’ part is an objective question: What would a reasonable person in his position have had in his mind?)

AND WHAT’S THE PROBLEM WITH ‘MISTAKE OF FACT’?
The ‘mistake of fact’ defence undermines the law’s attitude to free and voluntary consent. Consent cannot be established by pointing to the complainant’s social behaviour, level of intoxication, or lack of physical resistance. However, all these factors have been used to benefit defendants who say theirs is a ‘mistake of fact’ situation.
In practice, as you can read in these cases, the ‘mistake of fact’ defence makes it extremely difficult to secure convictions for any sexual assault or rape cases that involve intoxication, ‘the freeze’, mental incapacity, or language barriers - whether present in the defendant, complainant, or both. For example, if a defendant was drunk, this may help him to argue he had an honest belief the complainant was consenting. But if a complainant was drunk, this may also help the defendant argue the complainant’s drunken behaviour wasn’t clearly communicating ‘no’. If you’re a survivor, it’s a lose-lose scenario.

WHAT ARE “RAPE MYTHS” AND WHAT HAS CHANGED?
Rape law has long been influenced by harmful myths such as the idea that most rapes are committed by strangers, ‘no’ sometimes means ‘yes’, or that women are responsible for being raped if they dress provocatively, drink alcohol, engage in flirtatious conduct, or accompany the accused to a private location. These pernicious myths feed into the social construct of the ‘ideal victim’ as a chaste, modest woman who is raped violently by a stranger in a public place. However, the best and most recent data we have from the Australian Bureau of Statistics confirms women are most at risk of being sexually victimised in a residential location, by someone known to them, without the use of a weapon, and rarely with corresponding physical injuries.
Queensland rape law now recognises that rape can be committed in private by someone known to the complainant, and that consent cannot automatically be inferred from the complainant’s dress, level of intoxication, sexual history or lack of physical resistance. These are hard won and important acknowledgments that need better enforcement. However, the ‘mistake of fact’ defence undermines this progress, by letting ‘rape myths’ back into the courtroom through the back door.